Date: 20040709
Docket: T-1922-02
Montréal, Quebec, this 9th day July, 2004
Present: The Honourable Justice James Russell
BETWEEN:
METIS NATION OF ONTARIO
Applicant
and
DANA PRZYBYSZEWSKI
Respondent
REASONS FOR ORDER AND ORDER
[1] This application is for judicial review of a decision under Division XIV, Part III of the Canada Labour Code R.S.C. 1985, c. L-2 ("Canada Labour Code") on October 15, 2002 ("Decision") by an adjudicator ("Adjudicator") in reference to the employment relationship between Mr. Przybyszewski ("Respondent") and the Métis Nation of Ontario ("Applicant").
BACKGROUND
[2] Mr. Przybyszewski is the complainant in the adjudication and the Respondent on this judicial review application. The Applicant is the Métis Nation of Ontario, an Ontario corporation formed to promote the interests and rights of the Métis people who live in Ontario.
[3] On June 26, 2001, the Respondent filed a complaint for unjust dismissal against the Applicant under Division XIV-Part III of the Canada Labour Code.
[4] Prior to the initial hearing, the Applicant filed submissions challenging the jurisdiction of the Adjudicator to hear the matter on the basis that the labour relations of the Applicant fall under provincial jurisdiction and not under the Canada Labour Code.
[5] At the hearing, the Adjudicator granted the Respondent an adjournment so that he could retain legal counsel. The Adjudicator subsequently recommended that the jurisdiction matter be dealt with by written submissions.
[6] On August 23, 2002 the Respondent submitted written submissions on the jurisdiction issue.
[7] The following facts (which were not disputed by the Respondent) were submitted by the Applicant:
a. The Métis Nation of Ontario is incorporated under the laws of Ontario as a not- for-profit, non-share corporation;
b. The Métis Nation of Ontario is engaged in the business of promoting the cultural, social political, and economic well being of Métis who live in Ontario;
c. The Métis Nation of Ontario receives some federal and provincial funds for, among other things, employment and training, child and family services, economic development, and housing;
d. The Métis Nation of Ontario entered into an agreement with the Province of Ontario on December 14, 1999 for the administration of the Aboriginal Healing and Wellness Strategy;
e. The Complainant was offered a position by the Métis Nation of Ontario on February 10, 2000 as a Site Project Assistant for the Aboriginal Healing and Wellness Strategy;
f. The Complainant worked out of the Georgian Bay Métis Council Office as the Site Project Assistant for the Aboriginal Healing and Wellness Strategy until June 14, 2001 whereupon he was dismissed for cause;
g. The Complainant filed a complaint against the Métis Nation of Ontario under Division XIV-Part III of the Canada Labour Code for unjust dismissal on June 26, 2001.
Written Submissions of Metis Nation of Ontario, February 12, 2002 (Tab 7 at 33 of Applicant's Record).
[8] The Aboriginal Healing and Wellness Strategy ("Strategy") referred to in the statement of facts was developed by the Government of Ontario in consultation with aboriginal organizations to address the high instances of family violence and poor health levels in aboriginal communities. The Strategy is funded by the Government of Ontario. Implementation of the Strategy is overseen by a Joint Management Committee. There is a funding agreement between the Minister of Community and Social Services and the Applicant, dated December 14, 1999.
DECISION UNDER REVIEW
[9] The Adjudicator concluded as follows on the jurisdiction issue:
... power to regulate labour relations between the [Applicant] and the complainant forms an integral part of the primary federal jurisdiction over "Indians" recognized in s. 91(24) of the Constitution Act, 1867.... [this conclusion was] founded on the agreement of the parties that for the purposes of that provision [s. 91(24)], Métis are "Indians".
Decision of the Adjudicator, October 15, 2002 (Tab 6 at 32 of Applicant's Record).
[10] On this basis, the Adjudicator found that the employment relationship between the Respondent and the Applicant come under the Canada Labour Code and that he had jurisdiction to hear and determine the Respondent's complaint.
[11] In a letter dated January 15, 2002, the Adjudicator advised the solicitor for the Applicant that he would provide notice of the proceeding on the matter of jurisdiction to the Attorney General of Canada and the Attorney General of Ontario. The Adjudicator provided a copy of this notice, also dated January 15, 2002, to the Respondent's solicitor.
[12] On February 12, 2002, the Applicant made submissions to the Adjudicator on the question of the Adjudicator's jurisdiction to consider a complaint against the Applicant under Division XIV - Part III of the Canada Labour Code. The issue of the parties to whom notice of the jurisdictional question should be provided was not raised in the Applicant's submissions to the Adjudicator.
ISSUES
[13] The Applicant raises the following issues:
Did the Adjudicator act without jurisdiction because there was no proper notice of the constitutional question pursuant to s. 57(1) of the Federal Court Act?
Did the Adjudicator err in law in concluding that he had jurisdiction based on the alleged agreement of the parties that Métis are "Indians" for the purposes of s. 91(24) of the Constitution Act, 1867?
Did the Adjudicator make an erroneous finding of fact without regard for the material before him when he concluded that the Strategy was closely linked to "Métisness"?
ARGUMENTS
Applicant
a) Did the Adjudicator act without jurisdiction because there was no proper notice of the constitutional question pursuant to s. 57(1) of the Federal Court Act?
[14] The Applicant submits that the Adjudicator did not have the jurisdiction to decide the matter before him because proper notice of the constitutional question was not given to the Attorney General of Canada and the Attorneys General of each province as required by s. 57(1) of the Federal Court Act, R.S. 1985, c. F-7.
[15] The Applicant submits that an Adjudicator acting under the Canada Labour Code falls within the definition of a "federal board, commission or other tribunal" in s. 2(1) of the Federal Court Act. The source of an adjudicator's jurisdiction or powers is the determining factor in reaching this conclusion. The Adjudicator, in the case at bar, was appointed under s. 242(1) of the Canada Labour Code and derives his authority from s. 242(2) of that statute (Canadian Restaurant & Food Services Assn. v. Canadian Dairy Commission, [2001] FCT 34 (Fed. T.D.); Quebec (A.G.) v. Cree Regional Authority, [1991] 3 C.N.L.R. 82 (Fed. C.A.))
[16] The Applicant submits that the Adjudicator is a "federal board, commission or other tribunal" within the meaning of s. 2(1) of the Federal Court Act and the notice provisions of s. 57(1) of the Federal Court Act apply to the adjudication (Southam Inc. v. Canada (Attorney General), 73 D.L.R. (4th) 289).
[17] On January 18, 2002, the Adjudicator notified the Respondent's solicitor by letter that he would provide notice of the constitutional question.
[18] The Adjudicator did, in fact, provide the Attorneys General of Canada and Ontario with notice of the constitutional question by letter, dated January 14, 2002. In that letter, notice of constitutional question was given pursuant to s. 109(1) of the Courts of Justice Act, R.S.O 1990, c. C. 43.
[19] The Applicant says that section 57(1) of the Federal Court Act requires notice to be given to the Attorney General of Canada and the Attorneys General of each province. Notice under s. 57(1) is mandatory except in limited circumstances. In Gitxsan Treaty Society v. Hospital Employees' Union, [2000] 1 F.C. 135 (Fed. C.A.), Rothstein J.A. at para. 10, concluded that the absence of prejudice was not relevant:
As to the question of the attorneys general not demonstrating prejudice, whether subsection 57(1) is mandatory has not been conclusively decided by the Supreme Court of Canada. However, except in limited circumstances which are not applicable here, I think the weight of judicial authority is in favour of the provision being mandatory ... the requirement to give notice in accordance with subsection 57(1) is mandatory (except in limited circumstances, i.e. where the attorneys general consent or where there has been de facto notice) and the presence or absence of prejudice is irrelevant.
[20] The Applicant submits that proper notice of the constitutional question was not given in this case to all of the provincial Attorneys General (Norway House Indian Band v. Canada (Adjudicator, Labour Code), [1994] 3 F.C. 376 (T.D.), at para. 35).
[21] Because proper notice of the constitutional question was not given pursuant to s. 57(l) of the Federal Court Act, the Applicant submits that the Adjudicator had no jurisdiction to decide the constitutional question and his Decision is invalid Ruth Giagnocavo v. Her Majesty the Queen (1995), 95 D.T.C. 5618 (Fed. C.A.); McIntosh v. Canada (Secretary of State), [1994] F.C.J. No. 67 (Fed. C.A.)).
Did the Adjudicator err in law in concluding he had jurisdiction based on an alleged agreement between the parties that Métis are "Indians" for the purposes of s. 91(24) of the Constitution Act, 1867?
[22] The Adjudicator concluded that "power to regulate labour relations between the Métis Nation of Ontario and the Complainant forms an integral part of the primary federal jurisdiction over 'Indians' recognized in s. 91(24) of the Constitution Act, 1867."
[23] The Adjudicator reached this conclusion on the purported agreement of the parties that "Métis" are "Indians" for the purposes of s. 91(24). Specifically, he stated as follows:
It is significant to note that in its submissions the MNO stated "The MNO takes the position that Metis are "Indians" for the purpose of federal jurisdiction under s. 91(24)", of the Constitution Act. 1867. That provision places "Indians and Lands reserved for Indians" under federal jurisdiction. Counsel for the complainant in turn stated that he agrees with and relies on that concession by the respondent. In light of the party's agreement, and without making a finding in that regard, I have proceeded on the basis of that agreement that Métis are "Indians" for purposes of s. 91(24).
Decision of the Adjudicator, October 14, 2002 (Tab 6 at 22 of Applicant's Record).
[24] The Applicant submits that the Adjudicator made three errors in basing his Decision on a purported agreement between the parties that Métis are Indians for the purposes of s. 91(24) of the Constitution Act, 1867. First, there was no agreement by the parties. Second, even if there was an agreement, it cannot found jurisdiction in the Adjudicator. Third, there was no factual record to support the legal conclusion that Métis are Indians for the purposes of s. 91(24).
There Was No Agreement Between the Parties
[25] The Applicant says it did not intend to concede, as a legal conclusion, that Métis are Indians for the purposes of s. 91(24). The Applicant's original submissions to the Adjudicator stated as follows:
19. The Métis Nation of Ontario takes the position that Métis are "Indians" for the purpose of federal jurisdiction under s. 91(24). However, this does not mean that labour relations performed by or under the supervision of the Métis Nation of Ontario are within federal jurisdiction. Métis are not subject to the Indian Act. There is no analogous federal law with respect to Métis communities. The Métis Nation of Ontario's business is not administered by "Indians" or for "Indians". The Métis Nation of Ontario is not situated on reserve and does not provide programs and services to Indians either on or off reserve. The Métis Nation of Ontario is not a "band council" within the meaning of the Indian Act, and is not established pursuant to federal authority and does not exercise delegated federal authority.
Written Submissions of Métis Nation of Ontario, February 12, 2002 (Tab 7 at 37 of Applicant's Record).
[26] In his submissions to the Adjudicator, the Respondent, at para. 4, stated as
follows:
4. The Complainant concedes the facts set out in paragraphs 1, 2, 3, 4, 5, 6, and 7 of its submissions dated February 12, 2002. The Complainant agrees with and relies on the Respondent's concession in paragraph 19 of the Respondents Submissions dated February 12, 2002 that "The Métis Nation of Ontario takes the position that Métis are "Indians" for the purposes of federal jurisdiction under s. 91(24) [of the Constitution Act, 1867]
Complainant's Submissions, August 23, 2002 (Tab 8 at 71 of Applicant's Record).
[27] The Applicant's reply submissions to the Adjudicator, at paras. 12 and 13, stated as follows:
12. The Métis Nation of Ontario takes the position that Métis, both as a people and as Individuals, are within s. 91(24) and are thus within federal jurisdiction. We also note that there is no judicial finding to this effect because the question as to whether Métis are "Indians" for the purposes of 91(24) has not to date been litigated. The federal government itself consistently denies that it has jurisdiction for Métis. Following on this it should be noted that while the federal government has an entire department for "Indians" that includes several programs and millions of dollars of funding, they provide next to nothing for Métis. Specifically, there are no federal health programs for Métis.
13. The Respondent has not asked that this adjudication make a finding that Métis are "Indians" for the purposes of s. 91(24). We note that the complainant relies on the Respondent's position that Métis are "Indians" for the purposes of s. 91(24), but advances no argument himself on the issue. In fact it is clear that neither the Respondent nor the complainant have provided argument on this matter. The Respondent wishes to emphasize that we are specifically asking that no finding be made on whether Métis are "Indians" for the purposes of s. 91(24).
Applicant's Reply Submissions, September 5, 2002 (Tab 9 at 77 of Applicant's Record).
[28] The Applicant submits that the Adjudicator's conclusion that the parties agreed that Métis are Indians within the meaning of s. 91(24) relies upon one sentence without placing it in the context of the full submissions.
[29] The Applicant says that it is clear on a reading of all the submissions that the Applicant was not conceding a legal issue. On the contrary, the Applicant in reply denies that the Respondent can rely on that statement and says that the onus is on the Respondent to prove that Métis are within s. 91(24) and to provide evidence to support such a legal conclusion:
It is settled law that Indians are within s. 91(24), and it is also settled law that all of their labour relations do not automatically trigger federal jurisdiction. There are two steps required to trigger federal jurisdiction in this matter. First, the onus is in on the complainant to show that Métis are "Indians" for the purposes of s. 91(24). Second, the onus is on the complainant to show that the activity in question triggers federal jurisdiction with respect to the specific labour relations at issue. It is submitted that the complainant has not proven either of these steps.
Applicant's Reply Submissions, September 5, 2002, para. 14 (Tab 9 at 77 of Applicant's Record).
[30] On this basis, the Applicant says there was no "agreement" between the parties.
An Agreement Between the Parties Cannot Found Jurisdiction
[31] Even if there was an agreement between the parties that Métis are Indians for the purpose of s. 91(24), the Applicant says that jurisdiction and constitutional questions cannot be determined on the basis of consent or agreement between the parties and relies upon the following words of Muldoon J.:
Chief Justice Sir Charles Fitzpatrick and Mr. Justice Idington dissented from the ratio of the majority holding, in effect, that where there is ab initio no jurisdiction vested in a tribunal to adjudicate a particular matter, all the consenting in the world cannot vest the tribunal with that jurisdiction, which was never conferred by appropriate legislation. Indeed, the correctness of that posture is self-evident, for otherwise a tribunal created for a certain purpose (i.e. to entertain appeals from the county judge) could, if word got out, be recast into a different tribunal with a different caseload from that which the legislature created and foresaw. Consent cannot override the will of the legislature, provincial or federal.
This is the first-instance curial review of the Adjudicator's decision in this case and this Court will not conclude the question of jurisdiction according to the parties' previous consent, nor on the basis of the applicant's estoppel from raising the question here ... If the adjudicator had no jurisdiction as the applicant now asserts, then he never had jurisdiction and that consent would be immaterial, except perhaps as to costs.
Norway House Indian Band v. Canada (Adjudicator, Labour Code), [ 1994] 3 F.C. 376, at para. 6 & 8.
[32] On this basis, the Applicant says the Adjudicator could not make a finding that Métis are "Indians" for the purposes of s. 91(24) on the basis of the purported consent or agreement of the parties.
No Factual Record
[33] The Applicant also submits that the Adjudicator erred in proceeding to make his Decision on the basis that Métis are "Indians" for the purposes of s. 91(24) of the Constitution Act, 1867 when there was no factual record before him to support such a conclusion.
[34] Jurisdiction, as a matter of law, cannot be determined without the necessary "constitutional facts." A complete set of factual findings is required. The Applicant relies upon Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115 (QL at p. 17-18).
[35] In the present case, no evidence going to the issue of whether Métis are Indians for the purposes of s. 91(24) was adduced by either party at the adjudication.
[36] The Applicant points out that in the Ontario Labour Relations Board's decision in Ontario Public Service Employees Union and Ontario Métis and Non-Status Indian Association et al, the employer challenged the OLRB's jurisdiction to grant an application for the certification of a union on the basis that the employees were "Indians" for the purposes of s. 91(24). The OLRB held that there was no factual evidence before the Board on this issue, and assertions were insufficient to establish a constitutional fact. Specifically, the Board held as follows:
In view of the definition of Indian in the Indian Act and the long-standing historical distinction between Indians and Métis or persons of mixed blood, and in the absence of any historical evidence to demonstrate that the Imperial Parliament of 1867 regarded Métis or half-breeds as Indians, the board cannot conclude that the Complainant's members or beneficiaries are Indians within the meaning of section 91(24) of the B.N.A. Act. To accept the Complainant's contention in the absence of historical evidence, would be to find that a mere assertion of Indian status is enough to establish it as a fact - and this result seems inconsistent even with the Indian Act itself which contains an elaborate mechanism for the determination of status, registration and appeal. However, even if the Complainant's members and beneficiaries are Indians, we have concluded that the Complainant's employer-employee relationships are subject to provincial regulation.
Ontario Public Service Employees Union and Ontario Métis and Non-Status Indian Association et al, [1980] 3 Can. L.R.B.R. 328 (O.L.R.B.) at p. 90.
Did the Adjudicator make an erroneous finding of fact without regard for the material before him when he concluded that the Strategy was closely linked to "Métisness"?
[37] The Applicant further submits that the Adjudicator made an erroneous finding of fact in concluding that the Strategy was closely linked to "Métisness". The Adjudicator reasoned that in order to establish that the Applicant's labour relations regarding the Strategy fell under federal jurisdiction "it must be established that the power to regulate labour relations of the undertaking, in this case, the 'Aboriginal Healing and Wellness Strategy,' forms an integral part of the primary federal jurisdiction over 'Indians'." The Adjudicator cited Four B. Manufacturing Ltd. v. United Garment Workers of America et al (1979), 4 C.N.L.R. 21, and set out the following test:
In summary, the test to be applied in the present case is whether the activity in question, "the Aboriginal Healing and Wellness Strategy", is an activity, the purposes of which are related to "Indianess" (in this case "Métisness") or that puts the Métis status or rights closely connected with Métis status, into issue.
Decision of the Adjudicator, October 15, 2002 (Tab 6 at 22-24 of Applicant's Record).
[38] In applying this test, the Adjudicator concluded that there were specific facts that suggested the Strategy went to "Métisness":
The particular operation was administered by the MNO whose sole focus was the promotion-of the well-being of the Métis people. The program was only open to MNO citizens, who by definition had to be Métis. Even an employee such as the complainant was required to promote the interests of the Métis in carrying out the program. All of the foregoing indicates that the program was peculiarly sensitive to the "Métisness" of its clients.
Decision of the Adjudicator, October 15, 2002 (Tab 6 at 31 of Applicant's Record).
[39] The Applicant argues that in order to justify judicial intervention based on an erroneous finding of fact, a three part test must be met: 1) the finding of fact must be truly erroneous; 2) the finding must be made capriciously or without regard to the evidence; and 3) the decision must be based on the erroneous finding (Rohm and Haas Canada Ltd. v. Canada (Anti-Dumping Tribunal), [ 1978] F.C.J. No. 522) (C.A.)).
1) Rohm and Hass Test - Part 1: Erroneous Finding of Fact
[40] The Applicant points out the Strategy is a provincially funded program that was developed by the Government of Ontario in consultation with aboriginal organizations to address high instances of family violence and poor health levels throughout aboriginal communities. A Joint Management Committee, consisting of Ontario and aboriginal representatives (First Nation and Métis) oversees the implementation of the Strategy. The Applicant is responsible for the administration of the program to its citizens (Funding Agreement between Minister of Community and Social Services and the Métis Nation of Ontario, dated December 14, 1999 (Tab A of Applicant's Record); Letter to Tony Belcourt from Aboriginal Healing and Wellness, dated October 6, 2000 (Tab C of Applicant's Record)).
[41] The Adjudicator relied on Sagkeeng Alcohol Rehab Centre Inc. v. Abraham, [1994] 3 F.C. 449 (T.D.) in reaching his conclusion that the Strategy was closely linked to "Métisness". However, the Applicant submits that Sagkeeng has no bearing on the case at bar because it is distinguishable on the facts.
[42] The program in Sagkeeng was founded on cultural attributes, and, in particular, a focus on Indian spirituality and values. It is because of this close link between Indian culture and spirituality in the Sagkeeng program, the Applicant argues, that the court was able to conclude that the program went to the heart of "Indianess."
[43] The determination of the core of "Indianess" has been discussed by the Supreme Court of Canada in Dick v. R.. The Applicant says that the Supreme Court's reasoning to determine whether or not the Wildlife Act impaired "Indianness" is applicable to the case at bar. Specifically, the Supreme Court held as follows:
A considerable volume of evidence was called at trial as to Indian culture, habits, history, the significance of hunting and fishing as part of that culture, and specifically as to provincial conservation objectives and methods, sustenance permits, food requirements, traditional claims and so on. This testimony was supported by various maps as to alleged historic hunting areas, policy statements and lengthy opinion evidence of Dr. M. Asch, an anthropologist who is the author of numerous papers dealing with, inter alia, aboriginal rights.
...
In my opinion, it is impossible to read the evidence without realizing that killing fish and animals for food and other uses gives shape and meaning to the lives of the members of the Alkali Lake Band. It is at the centre of what they do and what they are.
...
Indeed, I would add that if the facts in this case do not place the killing of the deer within the central core of Indianness, if there is one, or within the boundary that outlines the status and capacities of the Alkali Lake Band, then it is difficult to imagine other facts that would do so.
...
I am prepared to assume, without deciding, that Lambert J.A. was right on this point and that the appellant's submissions on the first issue is well taken.
Dick v. R, [1985] 4 C.N.L.R. 55, at p. 60 and 65 (Beetz J. citing with approval Andrew Co. Ct. J. and Lambert J.A.).
[44] The Applicant submits that there was no evidence before the Adjudicator to suggest that the Strategy went to the core of "Métisness" in the same manner that the Wildlife Act went to the core of "Indianness" in Dick, supra, or that the program went to the core of "Indianness" in Sagkeeng. In fact, the Applicant says there is no evidence that the Strategy is in any way analogous to the program considered by the court in Sagkeeng. There is no evidence that Strategy employees are, as a component of the Strategy, rehabilitating Métis clients to their own culture. There is no evidence that employees provide any cultural training in Métis culture to clients. There is also no evidence that "Métisness" is at issue in the provision of services pursuant to the Strategy.
[45] The Applicant also argues that Sagkeeng does not apply to the facts in this adjudication. The fact that one particular health program for Indians has been found by the court to have "Indianess" at its core in an amount sufficient to bring its labour relations within federal jurisdiction does not mean that all aboriginal health programs will follow suit.
2) Rohm and Hass Test - Part 11: Without Regard to the Evidence
[46] The Applicant also submits that the Adjudicator's finding that the Strategy was closely linked to "Métisness" was erroneous because he reached this conclusion without regard to the evidence , and specifically without regard to the fact that there was no material before him on this issue (Hristova v. Canada (Min. of Employment and Immigration), [1994] F.C.J. No. 132 (T.D.); Boucher v. Morgan, [1989] F.C.J. No. 554 (T.D.)).
[47] The Adjudicator relied on the Applicant's Statement of Prime Purpose and the Aboriginal Healing Wellness Strategy Agreement in arriving at the conclusion that the Strategy went to the heart of "Métisness."
[48] The Applicant says these documents in themselves are not sufficient evidence to support a finding that the Strategy went to the heart of "Métisness." The Aboriginal Healing Wellness Strategy Agreement is nothing more than a funding agreement that sets out how funds are to be transferred to the Applicant and how those funds are to be reported and accounted for. There is nothing in the agreement that suggests that the Strategy goes to the heart of "Métisness."
[49] The Statement of Prime Purpose is a general vision statement of the Applicant. The primary purpose of the Applicant, and consideration of whether the activity in question furthers that primary purpose, are not relevant to the determination of jurisdiction in this case.
[50] The Applicant points out that it has several stated purposes - cultural, economic, political and social. One of them is fostering prosperity and economic self-sufficiency for the Métis Nation. If the Statement of Prime Purpose can determine whether an activity is central to "Métisness", then a shoe manufacturing company set up by the Applicant would have its labour relations within federal jurisdiction simply because the making of shoes fosters prosperity and economic self-sufficiency and furthers an objective of the Métis Nation. This cannot be the correct analysis (Funding Agreement between the Minister of Community and Social Services and the Métis Nation of Ontario, dated December 14, 1999 (Tab A of Applicant's Record); Métis Nation of Ontario - Statement of Prime Purpose (Tab E of Applicant's Record)).
[51] The onus of proving that the Strategy goes to the heart of "Métisness" was on the Respondent. The Respondent put forward no evidence to support this claim and did not meet this burden.
[52] In fact, the Applicant points out that there was no direct evidence on this issue put before the Adjudicator by either party.
[53] The Applicant submits that it was a reviewable error for the Adjudicator to make a finding on this issue without regard to the material before him and there was no evidence on whether the Strategy went to the heart of Métisness.
3) Rohm and Hass Test - Part III: Decision Must be Based on the Erroneous Finding
[54] The Applicant submits that the Adjudicator's jurisdiction Decision was substantively based upon his finding that the Strategy was closely linked to "Métisness."
[55] The majority of the Adjudicator's Decision focuses on this one factor. Specifically, the Adjudicator uses his finding that the Strategy goes to the heart of "Métisness" in order to reach the conclusion that the labour relations between the Applicant and the Respondent form an integral part of the primary federal jurisdiction over "Indians" recognized in s. 91(24) of the Constitution Act, 1867.
[56] The Applicant argues that all three elements of the Rohm and Hass test are met in this case. Specifically, the Adjudicator's finding of fact that the Strategy was closely linked to "Métisness" is truly erroneous. This finding was based on no evidence, and was the basis for the Adjudicator's conclusion that he had jurisdiction to hear the Respondent's complaint under the Canada Labour Code.
What is the Appropriate Standard of Review?
[57] The Applicant points out that the Supreme Court of Canada has held that an error of law as to an issue within a tribunal's jurisdiction is to be reviewed on a standard of correctness, provided the issue does not fall within the particular expertise of the tribunal (Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Boucher v. Canada (Attorney General), [2000] F.C.J. No. 86 (Fed. C.A.)).
[58] The Applicant further submits that the Adjudicator made an error of law in determining, based on a purported agreement between the parties and without a factual record, that Métis are Indians within the meaning of s. 91(24). The Applicant further submits that an adjudicator acting under the authority of the Canada Labour Code has no particular expertise with respect to aboriginal people (Canada (Attorney General) v. Symtron Systems Inc., [1999] 2 F.C. 514 (C.A.)).
[59] The Applicant submits that the issues of whether or not Métis are Indians for the purposes of s. 91(24), and whether the Strategy is closely linked to Métisness, are issues of jurisdiction. Therefore, the appropriate standard of review is "correctness." Accordingly, the Applicant argues that no curial deference should be given to the Adjudicator's findings (Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] l S.C.R. 982; Matsqui Indian Band v. Canadian Pacific Ltd., [ 1995] 2 C.N.L.R. 92 (S.C.C.)).
Respondent
Was notice of a constitutional question required pursuant to section 57(1) of the Federal Court Act?
[60] The Respondent submits that notice of a constitutional question is not required in all circumstances where a question of constitutional jurisdiction is being determined.
[61] The Respondent argues that s. 57(1) of the Federal Court Act does not impose an obligation on any party to serve notice of a constitutional question. Section 57(1) provides, rather, that a Court or federal board, commission or tribunal cannot judge an Act in question before it to be "invalid, inapplicable or inoperable" unless notice of the constitutional question has been served on the Attorneys General of Canada and the provinces (Native Council of Nova Scotia v. Canada, [2002] F.C.J. No. 4 at para. 25 (T.D.)).
[62] So the Respondent says that notice of a constitutional question is necessary only when a Court or federal board, commission or tribunal finds the legislation in question before it to be invalid, inapplicable or inoperable (Hewett v. Canada, [1996] T.C.J. No. 355 at paras. 8-9 (T.C.C.)).
[63] The Respondent concedes that the Adjudicator in this case is a "federal board, commission or other tribunal" within the meaning of s. 2(1) of the Federal Court Act.
[64] The question before the Adjudicator was whether the Canada Labour Code governs the labour and employment relations of the Applicant with respect to the administration of the Strategy. He determined that it did.
[65] The Adjudicator did not judge the legislation in question before him, the Canada Labour Code, to be "invalid, inapplicable or inoperable." For this reason, the Respondent says his Decision was not in violation of s. 57(1) of the Federal Court Act.
b) Was the Adjudicator correct in law in determining that the labour and employment relations of the Métis Nation of Ontario respecting the Aboriginal Healing and Wellness Strategy fall within federal jurisdiction?
What is the appropriate standard of review?
[66] The Respondent concedes that the appropriate standard of review on the question of
the Adjudicator's jurisdiction is correctness.
Was it open to the Adjudicator to base his determination of jurisdiction on the agreement between the parties that Métis are "Indians" for the purpose of federal jurisdiction under s. 91(24)?
[67] The Adjudicator's finding that the labour relations of the Applicant with respect to the Strategy fall within federal jurisdiction required, as a first step, resolution of the question of whether Métis are Indians within the meaning of s. 91(24) of the Constitution Act, 1867. The Respondent submits that this was a preliminary question of fact that could be agreed upon by the parties or, in the absence of agreement, established by evidence.
[68] The Respondent argues that Canadian courts and tribunals regularly base determinations of constitutional jurisdiction on facts that are agreed to by the parties raising the jurisdictional issue (Windsor Airline Limousine Services Limited, [1999] OLRB Rep. November/December 1125 at para. 2; La Co-operative De Point-Aux-Roches, [1995] OLRB Rep. February 138 at para. 4. OPSEU v. Ontario (1994), 16. O.R. (3d) 735 at 738 (Ont. Div. Court), Early Recovered Resources Inc. v. Gulf Log Salvage Co-Operative Assn., [2003] F.C.J. No. 92 at para. 11 (C.A.)).
[69] The Respondent also says that at least one Canadian court has based a determination of jurisdiction with respect to Métis people on an uncontested claim by a Métis group that Métis are Indians within the meaning of s. 91(24) R. v. Maurice, [2002] S.J. No. 104 at para. 20 (Sask. Q.B.)).
[70] In the present case, the fact that Métis are Indians within the meaning of s. 91(24) was asserted by the Applicant and agreed to by the Respondent.
[71] The agreement between the parties went only to this preliminary fact and did not extend to the ultimate question at issue: constitutional jurisdiction over the labour relations of the Applicant with respect to the Strategy. That question was left to the Adjudicator to answer based on evidence with respect to the nature of the undertaking.
[72] The Adjudicator concluded that "the power to regulate labour relations between the MNO and the complainant forms an integral part of primary federal jurisdiction over 'Indians' recognized in s. 91(24) of the Constitution Act, 1867." He noted that his conclusion was "founded on the agreement of the parties that for the purposes of that provision, Métis are 'Indians'."
[73] The Applicant submits that once the Applicant and the Respondent had agreed that Métis were Indians for the purpose of federal jurisdiction under s. 91(24), the Adjudicator was not required to make a factual finding on that question. He was, therefore, free to proceed to the question of whether the Applicant's labour and employment relations fell within federal jurisdiction.
Was the Adjudicator correct in determining that the power to regulate labour and employment relations of the Métis Nation of Ontario with respect to the Aboriginal Healing and Wellness Strategy forms an integral part of the primary federal jurisdiction over "Indians" recognized in s. 91(24) of the Constitution Act, 1867.
[74] The Respondent concedes that, as a rule, employer-employee relationships come under provincial jurisdiction and fall within "property and civil rights in the province" under s. 92(13) of the Constitution Act, 1867. Labour and employment relations come under federal jurisdiction only where such jurisdiction forms an integral part of Parliament's primary competence over some other single federal subject (Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory (Re), [2000] CIRB No. 64 at paras. 28-29, Four B Manufacturing Ltd. v. United Garment Workers of America, [1979] 4 C.N.L.R. 21 at 24).
[75] The Canada Labour Code R.S.C. 1985, c. L-2, (s. 167(1) and s. 2). is consistent with this general proposition in that it applies only to employees who are employed or connected to the operation of a "federal work, undertaking or business." "Federal work, undertaking or business" is defined as "any work undertaking or business that is within the legislative authority of Parliament."
[76] In determining whether an undertaking or business is within the legislative authority of Parliament, the Respondent suggests that courts apply a "functional test," taking into consideration the nature of the operation and normal activities (Four B Manufacturing).
[77] In circumstances where it is asserted that regulation of a particular activity forms an integral part of primary federal jurisdiction over "Indians and Lands reserved for the Indians" (s.91(24)), the functional test may be supplemented by an inquiry into whether the activity is one whose purposes are related to "Indianness" or that puts Indian status or rights closely associated with Indian status at stake (Four B Manufacturing).
[78] Such an inquiry was undertaken in Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory. In that case, the Canada Industrial Relations Board was called upon to determine whether the labour relations of a First Nations policing service fell under federal jurisdiction. It held that the power to regulate labour relations with respect to the policing service formed an integral part of the primary federal jurisdiction over Indians. The Board's determination was based on a finding that the policing service was an activity whose purposes were related to "Indianness" (Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory, at para. 36).
[79] The agreement establishing the police service, between five First Nations Treaty Organizations and the federal and Ontario governments provided that the "primary goal" of First Nations policing arrangements was "to provide an effective and efficient policing service which is culturally sensitive and appropriate for First Nations communities." On this basis, the Board found that the policing services on the reserve were "structured to meet primarily the needs of First Nations inasmuch as they are operated to provide culturally sensitive policing." The purposes of the police service were therefore related to "Indianness" (Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory, at paras. 34-35).
[80] In Sagkeeng, the Federal Court considered whether an adjudicator under the Canada Labour Code had correctly concluded that he had jurisdiction to hear a complaint brought by an employee of a rehabilitation centre. The Court determined that the employment relations with respect to the alcohol rehabilitation centre fell within federal jurisdiction and that the adjudicator was correct in assuming jurisdiction to hear the matter.
[81] As in the Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory case, the Court in Sagkeeng Alcohol Rehab Centre found that the purposes of the activity in question were related to "Indianness." The Court characterized the rehabilitation centre as "engaged in the provision of a form of health care service designed and operated to meet the needs of its Indian beneficiaries," and further elaborated as follows:
The fact that the rehabilitation centre is organized and operated primarily for Indians, that its facilities and services are intended primarily for Indians, that its staff are specially trained under the [National Native Alcohol and Drug Program] and receive First Nations training, and that its rehabilitation program, curriculum and materials are designed for Indians, all serve to identify the inherent "Indianness" of the centre and link it to Indians.
Sagkeeng Alcohol Rehab Centre, supra at paras. 13-14.
[82] The Respondent submits that it is clear, based on the cases cited above, that a determination of jurisdiction turns in large measure on the degree to which it can be said that the primary purpose of an undertaking is inherently related to "Indianness" and whether its activities are principally intended to further that objective.
[83] The Adjudicator in the case at bar determined that the test to be applied was whether the activity in question, the Strategy, is an activity the purposes of which are related to "Indianness" (or "Métisness"). Based on this test, the Adjudicator determined that the Strategy is "closely linked to the 'Métisness' of the clients it was solely designed to serve."
[84] The Respondent submits that the Adjudicator applied the appropriate analysis and that his conclusion that the Strategy is closely linked to "Métisness" was correct. The Respondent also submits that the Adjudicator had before him sufficient evidence on the primary purposes of the Strategy and that he gave proper regard to that evidence in determining that the Strategy is closely linked to "Métisness."
[85] The Adjudicator's first factual finding was that the target group of the Strategy was First Nations and Métis and that, administered by the Applicant, the target group was the Métis.
[86] This finding was based on evidence showing that the Strategy "was designed to address issues peculiar to an identified group, i.e. 'the high instances of family violence and poor health levels throughout First Nation and Métis Communities across Ontario'." The funding agreement between the Province and the Applicant for the administration of the Strategy to Métis people in Ontario provides as follows:
And Whereas the Strategy has been developed by Ontario and First Nation/Aboriginal communities to address the high instances of family violence and poor health levels throughout such communities.
Decision of the Adjudicator, October 15, 2002 (Applicant's Record, Tab 6 at 24-25).
Agreement between Her Majesty the Queen in the Right of Ontario and Métis Nation of Ontario (Applicant's Record, Tab A at 39).
[87] The Adjudicator's second factual finding was that, in administering the Strategy to the Métis of Ontario, the Applicant was pursuing its mandate of "promoting cultural, social and political well- being of Métis who live in Ontario" (Decision of the Adjudicator, October 15, 2002 (Applicant's Record, Tab 6 at 28)).
[88] The Adjudicator pointed to the Applicant's Statement of Prime Purpose, which provides that the Applicant is founded on a desire "to bind our people together to collectively promote our common cultural social, political and economic well-being." The purpose of the Applicant was restated by the Applicant in its submissions to the Adjudicator (Métis Nation of Ontario Statement of Prime Purpose (Applicant's Record, Tab E at 56), Written Submissions of the Métis Nation Of Ontario (Applicant's Record, Tab 7 at 33)).
[89] Based on these factual findings, the Adjudicator was able to conclude that "whether seen from the point of view of the employer's overall business as a going concern, or the specific activity in which the complainant was employed" the employment relations of the Applicant and the Respondent were subject to federal jurisdiction.
[90] The Respondent points out that the Adjudicator's factual findings, and the evidentiary basis for them, closely resemble those of this Court in Sagkeeng Alcohol Rehab Centre.
[91] The Respondent maintains that, based on the evidence before him, the Adjudicator correctly determined that the Strategy, as administered by the Applicant for the sole benefit of the Métis people of Ontario, is closely linked to "Métisness."
[92] Finally, the Respondent submits that the Adjudicator was correct in determining that the power to regulate the employment relations of the Métis Nation of Ontario with respect to the Strategy forms an integral part of the primary federal jurisdiction over "Indians" within the meaning of s. 91(24).
ANALYSIS
Notice under s. 57(1) of the Federal Court Act
[93] The Respondent concedes that the Adjudicator in this case was a "federal board, commission or other tribunal" within the meaning of s. 2(1) and s. 57(1) of the Federal Court Act. So the question before me on this issue comes down to the following: was the Adjudicator legally obliged to give s. 57(2) notice in this case and, if he was, what are the consequences of his not giving notice to the Attorneys General of each province except for Ontario?
[94] The Applicant takes the position that s. 57(2) notice is required not only where a statute or a regulation is found to be "invalid, inapplicable or inoperable," but must also be given in any proceeding where applicability is raised. In the present case, the applicability of the Canada Labour Code was raised before the Adjudicator and many provinces, apart from Ontario, would have a significant interest in this issue. The Applicant also says that, because the Attorneys General of the provinces, apart from Ontario, did not receive a s. 57(2) notice, proper notice of the constitutional question was not given and the Adjudicator lacked the jurisdiction to decide the complaint.
[95] The Respondent says that s. 57 notice was not required on the facts of this case because the Adjudicator applied the Canada Labour Code and did not adjudge it to be "invalid, inapplicable or inoperable" within the meaning of s. 57(1). In addition, the Respondent says that, even if notice was required, the Decision is not completely invalidated. The Applicant points out that in Native Council of Nova Scotia v. Canada, [2002] F.C.J. No. 4, Blanchard J. stated at para. 25 that "section 57 does not impose an obligation for any party to serve a notice of constitutional question, rather the section provides that there can be no consequence on an impugned Act or regulation if the notice is not given." The Applicant says that, having not provided notice itself, the Respondent is now arguing that no decision at all should have been made by the Adjudicator; this is an attempt to eliminate the real sanction imposed under s. 57(1). If notice is required and is not given then the sanction is that a statute or a regulation cannot be adjudged to be invalid, inapplicable or inoperable.
[96] The Decision does not address this issue because it was not raised by the Applicant before the Adjudicator. In its written submissions to the Adjudicator, the Applicant confined itself to arguing that the Canada Labour Code applies only to employees who are employed or connected to the operation of a federal work, undertaking or business, and that it was well established that provincial legislative jurisdiction is the rule and federal jurisdiction is the exception, and that neither the Applicant or the Strategy was a federal work, undertaking or business. Notwithstanding its contention that the Canada Labour Code was not applicable in this case, the Applicant did not file a s. 57 notice or argue before the Adjudicator that no decision could be made on this issue unless s. 57 notice was given.
[97] To support its position on this point, the Applicant refers the Court to the Federal Court of Appeal decision in Gitxsan Treaty Society v. Hospital Employees' Union, [2000] 1 F.C. 135. In that case the motion was to prevent an applicant from questioning the constitutional validity, applicability or operability of the Canada Labour Code on the ground that the applicant had failed to give notice to the Attorney General of Canada of the constitutional question as required by ss. 57(1) and (2) of the Federal Court Act. The mover in that case was the Attorney General of Canada who was supported by the respondents in the case and by the Attorney General of British Columbia.
[98] In the present case, the Adjudicator was merely asked to decide, on a particular set of facts, whether, leaving aside the issue of primary federal jurisdiction, a specific undertaking should be subject to the provisions of the Canada Labour Code and, in so doing, he did not have to decide whether an Act or a regulation was invalid, inapplicable, or inoperative. As Blanchard J. pointed out in Native Council of Nova Scotia v. Canada, at para. 25, "section 57 does not impose an obligation on any party to serve a notice of a constitutional question, rather the section provides that there can be no consequence on an impugned Act or regulation, if the notice is not given." And as McArthur T.C.J. observed in Hewett v. Canada, [1996] T.C.J. No. 355 in relation to section 160 of the Income Tax Act, the "notice is necessary, upon my reading of the Act, only if I find section 160 to be invalid, inapplicable or inoperable, which I do not." [para. 9] Consequently, I am of the view that the Decision cannot be attacked on this ground. It was not, in any event, a matter that was raised by the Applicant before the Adjudicator and so should not be advanced as a ground of judicial review before this Court.
Primary Federal Jurisdiction
[99] The Adjudicator came to the conclusion that "the power to regulate labour relations between the MNO and the complainant forms an integral part of the primary federal jurisdiction over 'Indians' recognized in s. 91(24) of the Constitution Act, 1867." He reached this conclusion on the basis of a purported agreement between the parties: "In light of the parties' agreement, and without making any finding in that regard, I have proceeded on the basis of that agreement that Métis are 'Indians' for purposes of s. 91(24)."
[100] The Applicant attacks this conclusion on three grounds: there was no such agreement between the parties; even if there was such an agreement, it could not be used to establish primary federal jurisdiction; and there was no factual record to support a legal conclusion that Métis are Indians for the purposes of s. 91(24).
No Agreement
[101] The Adjudicator is careful to make it clear in the Decision that his conclusion on primary federal jurisdiction is not based upon evidence and/or argument: "I repeat that this conclusion is founded on the agreement of the parties . . . ." What he means by "agreement" in this context is clear from the following statement:
It is significant to note that in its submissions the MNO stated: "The MNO takes the position that Metis are 'Indians' for the purpose of federal jurisdiction under s. 91(24) of the Constitution Act, 1867." That provision places "Indians and Lands reserved for Indians "under federal jurisdiction. Counsel for the complainant in turn stated that he agrees with and relies on that concession by the respondent.
[102] In other words, the Adjudicator concludes that the Applicant concedes this point and there is no need, for the purposes of his Decision, to inquire further or insist upon the Respondent proving the issue in the usual way.
[103] Once again, if the Applicant's written submissions to the Adjudicator are examined, its principal argument is based upon the fact that the undertaking in question in this case is not a federal work, undertaking or business. The primary jurisdictional argument is not raised.
[104] Paragraph 19 of the Applicant's submissions to the Adjudicator regarding jurisdiction refers briefly to the primary jurisdiction point in the following way:
The Métis Nation of Ontario takes the position that Métis are "Indians" for the purpose of federal jurisdiction under s. 91(24). However, this does not mean that labour relations performed by or under the supervision of the Métis Nation of Ontario are within federal jurisdiction. Métis are not subject to the Indian Act. There is no analogous federal law with respect to Métis communities. The Métis Nation of Ontario's business is not administered by "Indians" or for "Indians". The Métis Nation of Ontario is not a "band council" within the meaning of the Indian Act, and is not established pursuant to federal authority and does not exercise delegated federal authority.
[105] This looks to me like a concession (indeed, an assertion) on the part of the Applicant that "Métis are 'Indians' for the purpose of primary federal jurisdiction under s. 91(24)." All the Applicant raises for argument is whether its labour relations are within federal jurisdiction.
[106] Both sides were of the view that, generally speaking, employer-employee relationships are a matter of provincial jurisdiction. So the only real issue in dispute was whether the particulars of this case took it out of the provincial jurisdiction and placed it under federal control in accordance with exceptional cases such as Sagkeeng Alcohol Rehab Centre Inc. v. Abraham (1994), 3 F.C. 449 (T.D.).
[107] The Applicant is now arguing that it did not concede the primary jurisdiction point. It says that this was made clear when it submitted its reply submissions to the Adjudicator and said the following at paras. 12 and 13:
The Métis Nation of Ontario takes the position that Métis, both as a people and as individuals, are within s. 91(24) and are thus within federal jurisdiction. We also note that there is no judicial finding to this effect because the question as to whether Métis are "Indians" for the purposes of 91(24) has not to date been litigated. The federal government itself consistently denies that it has jurisdiction for Métis. Following on this it should be noted that while the federal government has an entire department for "Indians" that includes several programs and millions of dollars of funding, they provide next to nothing for Métis. Specifically there are no federal health programs for Métis.
The Respondent has not asked that this adjudication make a finding that Métis are "Indians" for the purposes of s. 91(24). We note that the complainant relies on the Respondent's position that Métis are "Indians" for the purposes of s. 91(24), but advances no argument himself on the issue. In fact it is clear that neither the Respondent nor the complainant have provided argument on this matter. The Respondent wishes to emphasize that we are specifically asking that no finding be made on whether Métis are "Indians" for the purposes of s. 91(24).
[108] The full import of these words is not obvious. First of all, there is a clear assertion once again that the "Métis Nation of Ontario takes the position that Métis, both as a people and as Individuals, are within s. 91(24) and are thus within federal jurisdiction." This is followed by several qualifications, but the jist of it appears to be that the assertion holds, neither side has adduced evidence or argument on point, the general legal situation has yet to be clarified, and the "Respondent wishes to emphasize that we are specifically asking that no finding be made on whether Métis are 'Indians' for the purposes of s. 91(24)."
[109] A review of the Decision reveals that this is precisely what the Adjudicator did. He specifically says that he reaches his conclusion on this point "without making any finding in that regard ... ."
[110] In my view, if the Applicant says that it "has not asked that this adjudication make a finding that Métis are 'Indians' for the purposes of s. 91(24)" it must be because the Applicant felt that such a finding was not necessary for the Decision, or because the point was conceded for purposes of argument. Had the Applicant taken the position before the Adjudicator that it now takes before this Court, it would have said that a finding had to be made on the issue of primary jurisdiction.
[111] The position before the Adjudicator seems to be that the Applicant thinks that Métis are Indians and come under federal jurisdiction generally speaking, but that issue doesn't need to be addressed in this case and the Adjudicator does not need to make a specific finding to this effect.
[112] I think this is what the Adjudicator did.
An Agreement Cannot Found Federal Jurisdiction
[113] Having specifically asked the Adjudicator not to make a finding "on whether Métis are 'Indians' for the purposes of s. 91(24)," the Applicant now wishes to say that, even if an agreement existed, or even if the Applicant did concede the point, no primary federal jurisdiction existed in this case and the Court can review the Decision on this basis.
[114] If this argument is accepted, it would mean that the Respondent and the Adjudicator have been misled, and that, notwithstanding that fact, this Court can quash the Decision at the request of the Applicant on this ground.
[115] The Applicant has referred the Court to the decision of Muldoon J. in Norway House Indian Band v. Canada (Adjudicator, Labour Code), [1994] F.C.J. No. 328 (T.D.) for the proposition that "where there is ab initio no jurisdiction vested in a tribunal to adjudicate a particular matter, all the consenting in the world cannot vest the tribunal with that jurisdiction, which was never conferred by appropriate legislation":
Indeed the correctness of that posture is self-evident, for otherwise a tribunal created for a certain purpose (i.e. to entertain appeals from the county judge) could, if word got out, be recast into a different tribunal with a different caseload from that which the legislature created and foresaw. Consent cannot override the will of the legislature, provincial or federal.
[116] Having specifically asked the Adjudicator to make no finding on primary federal jurisdiction, the Applicant now asks this Court to quash the Adjudicator's Decision on the grounds that it was incorrect and that he lacked primary jurisdiction, ab initio, a position that contradicts the assertion made by the Applicant before the Adjudicator.
[117] The Applicant did not raise the issue of primary jurisdiction before the Adjudicator and cannot raise it now as a ground of review before this Court. There is, in any event, no evidence or argument before me that the Adjudicator was wrong on this issue. The Applicant merely says that he should not have relied upon the agreement of the parties. But whether it is called an agreement or a concession, the Adjudicator merely did what the Applicant asked him to do: he left aside the issue of primary jurisdiction and proceeded to base his Decision on a functional analysis of the undertaking in question. In my view, this does not constitute grounds for judicial review of the Decision.
[118] There is no finding in this case that Métis are Indians or are a federal responsibility under the Constitution Act, 1867. The Decision is not based on that. It is not a case of the parties consenting to jurisdiction where none exists; it is a case of the parties, and the Applicant in particular, requesting the Adjudicator to make a decision on the basis of a functional analysis of the undertaking alone without reference at all to the primary jurisdiction issue.
No Factual Record
[119] The Applicant also argues that the Adjudicator erred in proceeding to make his Decision on the basis that Métis are Indians for the purposes of s. 91(24) of the Constitution Act, 1867 when there was no factual record before him to support such a conclusion.
[120] The Applicant argues that jurisdiction cannot be determined without the necessary constitutional facts. See Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115. The Applicant also says that, in the present case, no evidence going to the issue was adduced by either party.
[121] The reason why no evidence was led on this point by either party is that the Applicant specifically requested of the Adjudicator that he make no finding on this issue. "The Respondent [Applicant in this application] wishes to emphasize that we are specifically asking that no finding be made on whether Métis are 'Indians' for the purposes of s. 91(24)."
[122] No finding was necessary because, as the written submissions make clear, the argument was focussed on the issue of the nature of the undertaking itself and not upon primary constitutional jurisdiction.
[123] So, once again, the Applicant is asking the Court to set aside the Decision because the Adjudicator did what the Applicant requested. There was no factual record on this issue because the Applicant requested that it be left out of account.
[124] Quite apart from the incongruity of the Applicant seeking to set aside a Decision that accedes to its request, no factual record is required in a situation where an issue is conceded or, as is probably more accurate in this case, the parties agreed that it would be left out of account and the matter decided upon the basis of the character and purpose of the undertaking in question.
The Strategy's Link with Métisness
[125] Finally, the Applicant takes the position that the Adjudicator erred in finding that the Strategy was closely linked to Métisness. The Applicant says there is no factual record to support this finding and, in any event, the Strategy is nothing more than a simple referral service to existing health programs that have nothing to do with the cultural aspects of Métisness.
[126] This is, perhaps, an understandable position for the Applicant to take for purposes of this review, but it hardly accords with earlier assertions made by the Applicant before the Adjudicator, one of which he quotes and relies upon in his Decision:
The Aboriginal Healing and Wellness Strategy" is a provincially funded program and a joint initiative between Ontario and the Metis Nation of the Province of Ontario. The program was designed to address the "high instances of family violence and poor health levels" throughout First Nation and Metis Communities across Ontario. The Metis Nation of Ontario is responsible for the administration of the program to its citizens, all of whom are Metis and not Indians.
[127] My reading of the Decision suggests that the Adjudicator correctly states the law on this issue and refers to the appropriate authorities. After quoting the words of Beetz J. for the Supreme Court of Canada in Four B Manufacturing Ltd. v. United Garment Workers of America (1979), 4 C.N.L.R. 21 at 23, he says that "it must be established that the power to regulate labour relations of the undertaking, in this case, the (sic) the Aboriginal Healing and Wellness Strategy, forms an integral part of the primary federal jurisdiction over 'Indians'." He then goes on to apply the functional test to decide whether the Strategy is related to Métisness.
[128] The evidentiary base he uses is the statement of agreed facts and the Applicant's Statement of Prime Purpose.
[129] The parties had agreed that the Applicant "is engaged in the business of promoting cultural, social, political and economic well being of Métis who live in Ontario," and the Adjudicator points out that "there is no doubt that in administering the program in question, the MNO was pursuing that mandate." He concludes that "whether seen from the point of view of the employer's overall business as a going concern, or the specific activity in which the complainant was employed," the facts point in the direction of federal jurisdiction.
[130] The Applicant is asking this Court to conclude that there was no evidence upon which the Adjudicator could reach this conclusion or that, if there was, his application of the functional test on the facts was wrong.
[131] I believe there was a sufficient evidentiary base to support the Adjudicator's conclusions on this point. In applying the functional test he laid significant emphasis on the decision of this Court in Sagkeeng, where the employer corporation operated an alcohol rehabilitation centre on an Indian reserve in Manitoba, and on the guiding words of Rothstein J., at page 9 that "the rehabilitation centre in question is engaged in the provision of a form of health care designed to meet the needs of its Indian beneficiaries."
[132] The Adjudicator then comes to the following conclusion:
In my view, the facts before me lead to a similar conclusion. The program in which the complainant was employed, was not designed to address family violence and health issues generally. The program title, "Aboriginal Healing and Wellness Strategy" itself indicates that the focus was on Aboriginals. The particular operation was administered by the MNO whose sole focus was the promotion of the well-being of the Metis people. The program was only open to MNO citizens, who by definition had to be Metis. Even an employee such as the complainant was required to promote the interests of the Metis in carrying out the program. All of the foregoing indicates that the program was peculiarly sensitive to the "Metisness" of its clients. As in Re Sagkeeing, supra, here it is fair to conclude that the focus of the MNO in administering the program was to address a particular problem faced by the Metis people i.e. "The high instances of family violence and poor health levels". The program was closely linked to the "Metisness" of the clients it was solely designed to serve.
Therefore, applying the functional test as developed by the courts, I conclude that the power to regulate labour relations between the MNO and the complainant forms an integral part of the primary federal jurisdiction over "Indians" recognized in s. 91(24) of the Constitution Act, 1867. I repeat that this conclusion is founded on the agreement of the parties that for purposes of that provision, Metis are "Indians". It follows that the Canada Labour Code does apply to the employment relationship between the complainant and the MNO, and that I have jurisdiction to hear and determine the complaint filed under the Code.
[133] The Applicant has pointed out that there are significant factual difference between Sagkeeing, and the case at bar and that the Adjudicator got the functional test wrong. It is undoubtedly true that this case has different characteristics that can be used to distinguish it from Sagkeeing, but on the essential issue of the program's particular orientation to the Métisness of its clients, I cannot say on any standard of review that the Adjudicator was wrong or that there was no evidence upon which he could come to such a conclusion, and the Court declines to interfere with the Decision on this basis.
ORDER
THIS COURT ORDERS that
1. The Application is dismissed.
2. The Applicant shall pay the Respondent's costs of this application forthwith and irrespective of the final result of the Adjudication.
"James Russell"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1922-02
STYLE OF CAUSE: METIS NATION OF ONTARIO
Applicant
and
DANA PRZYBYSZEWSKI
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 25, 2004
REASONS FOR ORDER AND ORDER : THE HONOURABLE JUSTICE RUSSELL
DATED: July 9, 2004
APPEARANCES:
Jean Teillet
Randall Kahgee FOR APPLICANT
Richard Blair FOR RESPONDENT
SOLICITORS OF RECORD:
Pape & Salter FOR APPLICANT
Toronto, Ontario
Ryder, Wright, Blair & Doyle FOR RESPONDENT
Toronto, Ontario